State v. Moody

2024 Ohio 1793

Opinion

[Cite as State v. Moody, 2024-Ohio-1793.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. John W. Wise, J. -vs- Case No. CT2023-0086 CODY L. MOODY

Defendant-Appellant OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2023- 0450

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: May 8, 2024

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RONALD L. WELCH CHRIS BRIGDON Prosecuting Attorney 8138 Somerset Road Muskingum County, Ohio Thornville, Ohio 43076

JOHN CONNOR DEVER Assistant Prosecuting Attorney Muskingum County, Ohio 27 North Fifth Street P.O. Box 189 Zanesville, Ohio 43702 Muskingum County, Case No. CT2023-0086 2

Hoffman, J. {¶1} Defendant-appellant Cody Moody appeals the judgment of the Muskingum

County Common Pleas Court convicting him following his plea of guilty to one count of

aggravated murder (R.C. 2903.01(A)) with a firearm specification (R.C. 2941.145(A)), and

sentencing him to an aggregate term of incarceration of twenty-eight years to life.

Plaintiff-appellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On June 22, 2023, just after midnight, the Muskingum County Sheriff’s

Department received a report of gunshots fired in the area of Culbertson Road in

Zanesville, Ohio. At around 2:20 the same morning, the same caller reported hearing

another gunshot just outside his window of a camper where he resided with his friend,

Timothy Norris. Upon arriving at the scene, deputies found Norris dead inside the

camper, with a gunshot wound to the head. Detectives located a bullet hole in the camper

window, which corresponded to the area where Norris was found slumped over a table.

The shot appeared to come from outside the camper.

{¶3} Investigators determined the bullet hole was likely caused by a handgun

fired in close range of the camper. Deputies located a shed on the property with bullet

holes in it, and recovered six .9mm shell casings near the shed.

{¶4} Detective Sergeant Brady Hittle obtained a search warrant on June 23,

2023, requesting a Geo-Fence within a 100-meter circumference of the crime scene.

Google returned the requested information on June 26, 2023, reporting only one Google

ID in the area. Subsequent warrants were obtained, with police ultimately determining

the Google account associated within the Geo-Fence request belonged to Appellant. Muskingum County, Case No. CT2023-0086 3

{¶5} Appellant was involved in a relationship with Carlos “Ricky” Rivera, whose

nephew, Jordan, was found dead on August 5, 2022, in a shed on the property where

Norris was killed. On March 27, 2023, Norris was convicted of failure to report a death in

conjunction with Rivera’s death. The Rivera family was unhappy with this outcome.

{¶6} Police interviewed Appellant on July 10, 2023. Initially, Appellant denied

any involvement in Norris’s murder, and denied owning or possessing a firearm. Police

presented Appellant with a receipt from a pawn shop, showing Appellant purchased a

.9mm firearm in 2014. During the interview, Appellant asked to go home to smoke, drink

a Monster Energy drink, and pet his dog. Appellant advised if allowed to do these things,

he would then give a full statement.

{¶7} Appellant was transported back to his residence, and read his Miranda

rights. After Appellant signed a waiver of his rights, Detective Hittle interviewed Appellant

on his back porch. Appellant confessed to killing Norris. Appellant admitted he intended

to kill Norris, Norris’s roommate, and anyone else he suspected bore responsibility in the

death of Jordan Rivera. Appellant went to the property where Norris lived around 11:40

p.m., snuck down the driveway, and found Norris in the shed on the property. He shot at

the shed, intending to kill Norris. He heard Norris yell, “What the hell,” and knew he had

not killed Norris. Appellant left the property and returned home. Around 2:00 a.m.

Appellant returned and saw Norris sitting in the camper kitchen. Appellant shot Norris

through the window and fled the scene, disposing of the weapon in a creek.

{¶8} Appellant was indicted by the Muskingum County Grand Jury with one count

of aggravated murder with a firearm specification. He entered a plea of guilty, and was

convicted. The trial court sentenced Appellant to a term of life in prison without parole for Muskingum County, Case No. CT2023-0086 4

twenty-five years for aggravated murder, and three years incarceration for the firearm

specification, to be served consecutively for an aggregate prison term of twenty-eight

years to life. It is from the September 21, 2023 judgment of the trial court Appellant

prosecutes his appeal, assigning as error:

SHOULD THIS COURT SHOULD [SIC] REVERSE THE TRIAL

COURT’S DECISION TO IMPOSE A MAXIMUM SENTENCE ON THE

SINGLE COUNT OF AGGRAVATED MURDER IN CASE CR2023-450;

BECAUSE, THE SENTENCE WAS IN CONTRAVENTION OF THE

SENTENCING SENTENCES R.C. §2929.11 AND R.C. §2929.12.

I.

{¶9} Appellant argues a sentence of twenty-three years to life would be more

congruent with the statutory principles set forth in R.C. 2929.11 than the sentence of

twenty-five years to life imposed by the trial court. He argues he has no prior record and

was acting under the influence of Xanax at the time of the murder. He argues he accepted

responsibility and is willing to engage in rehabilitative programming. He also argues the

trial court did not account for the impact of the factors set forth in R.C. 2929.12.

{¶10} R.C. 2953.08 governs appellate review of felony sentencing. R.C.

2953.08(A) states “[i]n addition to any other right to appeal and except as provided in

division (D) of this section, a defendant who is convicted of or pleads guilty to a felony

may appeal as a matter of right the sentence imposed upon the defendant on [one of the

grounds listed in subsections (A)(1) through (A)(5)]”. In turn, R.C. 2953.08(D)(3) provides: Muskingum County, Case No. CT2023-0086 5

“A sentence imposed for aggravated murder or murder pursuant to sections 2929.02 to

2929.06 of the Revised Code is not subject to review under this section.”

{¶11} The Ohio Supreme Court has held R.C. 2953.08(D)(3) does not preclude

an appeal of a sentence for aggravated murder or murder which is based on constitutional

grounds. State v. Patrick, 164 Ohio St.3d 309, 2020-Ohio-6803, 172 N.E.3d 952, ¶22.

However, in the instant case, Appellant does not challenge his sentence on constitutional

grounds, but rather argues the trial court's sentence was based on an improper weighing

of the statutory factors. As such, pursuant to R.C. 2953.08(D)(3) we are without statutory

jurisdiction to review Appellant's sentence.

{¶12} The assignment of error is overruled. The judgment of the Muskingum

County Common Pleas Court is affirmed.

By: Hoffman, J. Delaney, P.J. and Wise, J. concur